TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, August 31, 2006

Moreland: Maybe Common Law Isn't Always Best

This is part of the series of guest posts about what should be taught in Torts.

Michael Moreland is an assistant professor at Villanova University School of Law.  Most recently, he was Associate Director for Domestic Policy at the White House.

Thanks to my former Williams & Connolly colleague Bill Childs for arranging this series of posts on what should be taught in 1L torts, which is especially helpful for those of us just launching our teaching careers.  Thanks also to Andrew McClurg for his post and for his 2005 article "Dead Sorrow" [PDF], which, as Bill pointed out a few months ago, is an extraordinary meditation on the human face of tort law.  [Ed.: Links to more discussion of the article are in McClurg's original post.]

I do want to respond to Professor McClurg's argument that the common law tradition is somehow under assault by tort reform initiatives. A threshold issue is whether legislatures or courts are best suited to address dysfunctions in the tort system, a debate probably best conducted issue by issue. It seems to me, though, that most of the tort reform proposals over the past several years--and especially those that have been enacted successfully at the federal or state level--were precisely in areas where McClurg's view of the common law had proven inadequate to the task at hand of administering a fair and efficient system for resolving meritorious claims and compensating victims: excessive damages, abuse of class actions, and unmanageable mass torts.  The 2005 federal Class Action Fairness Act, for example, responded to systemic problems created by abuses of class actions that courts -- particularly state courts -- could not resolve, whether on account of the local politics of the judiciary in some states or forum-shopping by plaintiffs' lawyers.  As with any assertion in the tort reform debate, of course, this is subject to a battle of data.  Cf. George Priest's white paper [PDF] for the Manhattan Institute.

An even better example might be asbestos litigation reform, which has failed at the federal level (largely but not exclusively due to the opposition of the plaintiffs' bar) but has been enacted in some states.  In Ortiz v. Fibreboard, Justice Souter termed asbestos litigation an "elephantine mass" that "defies customary judicial administration and calls for national legislation."  What are we to make of such mass torts that on account of the number or complexity of cases stretch the common law system beyond its limits?  And do legislative solutions in such cases in the name of tort reform somehow undermine the common law -- or do they rescue it?

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